DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No. 981214305-8305-01]
RIN 0651-AB02
Official Insignia of Native American Tribes;
Statutorily Required Study
AGENCY: Patent and Trademark Office, Commerce.
ACTION: Request for comments.
SUMMARY: On October 30. 1998, President Clinton signed Public Law
105-330. This law requires that the Patent and Trademark Office (PTO)
study a variety of issues surrounding trademark protection for the
official insignia of federally and/or state recognized Native American
tribes. The new law requires that the Commissioner of Patents and
Trademarks (Commissioner) complete the study and submit a report,
including the findings and conclusions, to the chairmen of the Committee
on the Judiciary of the Senate and the Committee on the Judiciary of the
House of Representatives, not later than September 30, 1999. This notice
requests input that will help the PTO make an initial determination of
how best to conduct the study, where public hearings should be held, and
who should be consulted during the study process.
DATES: To ensure consideration, comments must be received no later than
45 DAYS FROM THE DATE OF PUBLICATION IN THE FEDERAL REGISTER.
ADDRESSES: Comments must be submitted to: Eleanor K. Meltzer,
Attorney-Advisor, Office of Legislative and International Affairs; U.S.
Patent and Trademark Office; 2121 Crystal Drive, Suite 902; Arlington,
VA 22202. Comments may also be submitted bv e-mail to:
NAFedRegNotice@USPTO.GOV.
FOR FURTHER INFORMATION CONTACT: Eleanor K. Meltzer; Telephone:
703-306-2960; E-mail: eleanor.meltzer@uspto.gov; facsimile transmission:
703-305-8885. P.L. 105-330 may be viewed via the Library of
Congress website at: thomas.loc.gov.
SUPPLEMENTARY INFORMATION: Members of Congress have received complaints
regarding the lack of adequate protection for the official insignia of
Native American tribes. Title III of P.L. 105-330 requires the PTO to
study how such official insignia may better be protected under trademark
law. As an initial step to completing the mandated study, through this
Notice the PTO would like comments on: (1) how best to conduct the
study; (2) where public hearings should be held; and (3) who should be
consulted during the study process.
Issues to be Addressed by the Study
The final study must address a variety of issues, including the impact
of any changes on the international legal obligations of the United
States, the definition of "official insignia" of a federally and/or
state recognized Native American tribe, and the administrative
feasibility, including the cost, of changing current law or policy in
light of any recommendations. To help in answering items 1-3 above, the
following issues are raised. They are provided for informational
purposes only. Another Federal Register notice will be published in 1999
specifically requesting answers to the following questions.
o Definition of "Official Insignia" - How should the PTO define
"official insignia" of a federally or state recognized Native American
tribe?
o Establishing and Maintaining a List of Official Insignia - How should
the PTO establish a list of the official insignia of federally and/or
state recognized Native American tribes? How should the PTO maintain
such a list?
o Impact of Changes In Current Law or Policy - How would any change in
law or policy with respect to prohibiting the Federal registration of
trademarks identical to the official insignia of Native American tribes,
or of prohibiting any new use of the official insignia of Native
American tribes, affect Native American tribes? How would such changes
affect trademark owners? How would such changes affect the Patent and
Trademark Oflice? How would such changes affect any other interested
party? What impact would any such changes have on the international
legal obligations of the United States?
o Impact of Prohibition on Federal Registration & New Uses of Official
Insignia - How would prohibiting Federal registration of trademarks
identical to the official insignia of Native American tribes affect
any/all of the above-mentioned entities? How would prohibiting any new
use of the official insignia of Native American tribes affect any/all of
the above-mentioned entities? What effect would such prohibitions have
on the international legal obligations of the United States? What
defenses, including fair use, might be raised against any claims of
infringement?
o Administrative Feasibility - What is the administrative feasibility,
including the cost, of changing the current law or policy, to prohibit
the registration? What is the administrative feasibility, including the
cost, of prohibiting any new uses of the official insignia of state or
federally recognized Native American tribes? What is the administrative
feasibility, including the cost, of otherwise providing additional
protection to the official insignia of federally and state recognized
Native American tribes?
o Timing of Changes in Protection - Should changes in the scope of
protection for official tribal insignia be offered prospectively?
Retrospectively? What is the impact of such protection?
o Statutory Requirements - What statutory changes would be necessary in
order to provide such protection?
o Other Relevant Factors - What other factors, not mentioned above, are
relevant to this issue?
Request for Public Comment
The Commissioner has identified the following topics for which public
comment is currently requested:
1. Best Method of Obtaining Public Comments
What is the best way to obtain public comments? Should the PTO conduct
public hearings in order to obtain comments?
2. Site of Public Hearings
If public hearings are desirable, where should these hearings be
conducted? If suggesting sites for public hearings, please explain the
benefits, particularly in terms of reaching a relevant audience.
3. Persons/Organizations to Consult
Who should be consulted in order to effectively study the impact of
changes in trademark protection for the official insignia of Native
American tribes? Why?
Persons interested in commenting on the issues outlined above, or any
other topics related to the official insignia of Native American tribes,
should submit their comments in writing to the above address. It is
emphasized that, right now, the PTO is only requesting comments on
Questions 1, 2, and 3 above. All comments received in response to this
notice will become part of the public record and will be available for
inspection and copying at Suite 902Q, Crystal Park 2, 2121 Crystal
Drive, Arlington, Virginia.
December 22, 1998 Q. TODD DICKINSON
Deputy Assistant Secretary of Commerce and
Deputy Commissioner of Patents and Trademarks